Let courts decide

June 13, 2006

As a rule, the easiest thing to get Congress to do is nothing. That would be preferable to the Senate Judiciary Committee's effort to impose a retroactive legal framework on the Bush administration's apparently illegal program of spying on Americans without court approval.

The first hearing on what is likely to be a series of legal challenges to the administration's warrantless wiretap and telephone record data-mining programs was held yesterday before a U.S. District Court judge in Detroit. These issues will almost certainly wind up in the Supreme Court, which is the appropriate forum to determine fundamental questions of constitutional rights and freedoms.

After the high court rules, there will be ample time to change the law if need be. Given that the Judiciary Committee is contemplating endorsing President Bush's assertion that his wartime powers are unlimited, the notion of its rushing to pass legislation before the court acts inspires more dread than confidence.

Committee Chairman Arlen Specter sounds as though he means well. But the Pennsylvania Republican, who has long had an awkward relationship with the Bush White House, is no match for the all-out stonewall campaign being led by Vice President Dick Cheney.

Their most recent confrontation occurred over Mr. Specter's attempt to subpoena telephone company executives who, according to USA Today, secretly supplied to the National Security Agency call records of millions of seemingly innocent Americans to form a vast data bank that could be mined for links to terrorists.

The vice president, in return, embarrassed and undermined the chairman by lobbying Republican committee members behind his back to vote against issuing subpoenas, as well as warning the phone company executives not to give any information to Congress about its classified dealings with the NSA.

Mr. Specter fired back last week with a sharp letter of protest to Mr. Cheney, but was mollified in a phone call from the vice president, which the senator said in a CNN interview Sunday was the first time he'd heard from the administration.

The chairman says he was encouraged that the vice president has dropped his opposition to any legislation and may support a measure critics say would make it far more difficult to challenge administration overreaching in court.

If checks and balances were working properly, Congress would have swiftly shut the administration's unauthorized spying. As it is, the most that can be hoped is that Congress deadlocks and courts rise to the occasion.

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